Published Articles By Bob Heleringer

Does West Va. Case Imperil Racing "Purity?"

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Special To: The Blood-Horse December 3, 2011 / No. 48

A closely-divided West Virginia Supreme Court of Appeals dealt a crippling blow to the racing industry's formerly impregnable legal right to eject, for cause, licensed "permit-holders" such as jockeys.

In a closely watched decision released Nov. 18, West Virginia's highest court held 3-2 that the Charles Town racetrack had no "common law" right to delay a lower court’s injunction to admit seven jockeys who had been suspended and fined for violating West Virginia's "weighing out" rules.

PNGI Charlestown Gaming LLC v. Lawrence Reynolds, et. al., had its genesis in a sting operation conducted in March 2009, when a hidden camera recorded seven jockeys failing to report their accurate weights to Charles Town clerk of scales Michael Garrison. Garrison was eventually fired and, after a hearing the track's stewards suspended and fined the seven riders.

One week after this ruling Charles Town formerly notified one of the jockeys, Lawrence Reynolds, that he was being ejected "effective immediately." Reynolds promptly filed a suit and obtained a stay until the West Virginia Racing Commission could hold a de novo hearing.

Relying on its perceived common law right to eject even licensed individuals for any non-discriminatory cause, Charles Town denied entry to all the suspended jockeys despite the issuance of the stay. The court then enjoined the track from denying the riders' admission to its grounds until the racing commission dealt with their respective appeals.

After the commission upheld the stewards' rulings, Charles Town reinstated its ban on the seven jockeys, despite their appeals of the commission’s order. After that court issued yet another stay, track management appealed to West Virginia's Supreme Court.

In an unusual if not unprecedented alliance, the West Virginia Racing Commission supported the legal position of the ejected jockeys, arguing that its administrative prerogatives and the "permit-holders" due process rights took precedence over the racetrack's rights of exclusion. Making this case truly national in scope, the Jockeys' Guild and the national Horsemen’s Benevolent and Protective Association filed "friends-of-the-court" briefs in support of the commission and the banned jockeys.

Speaking for her slim majority, Chief Justice Margret Workman agreed with the lower court that Charles Town has no “unrestricted common law right to eject a jockey from its premises. ”The court took pains to distinguish state and federal case law endorsing a racetrack’s right to eject “undesirable” patrons from the higher scrutiny required for exclusion of “permit-holders” who have a vested “property right” in their licenses. The majority held that a racetrack’s “right” to eject licensees is subject to the “plenary authority” of the states racing commission and emphasized that the ultimate fate of any such disciplinary action begins and ends with that agency.

Only time will tell if this landmark decision portends a new direction in American equine regulatory law or is dismissed as an aberration by an activist court. The majority opinion omitted any discussion of decades-old precedents that have recognized racing’s “inherent” right to eject even licensed individuals if there is a “reasonable determination that their presence is detrimental to the to the best interest of horse racing.” (Iwinski v. Pennsylvania State Horse Racing Commission).

In the most famous manifestation of this principle, prominent but often-ruled-off jockey Robert J. “Bobby” Martin was ejected from Monmouth Park in 1956 despite his possession of a valid license. A New Jersey federal court upheld the track’s exclusion that was based entirely on the rider’s “record.”

“In a sport where the greatest importance should attach to dissipating any cloud of association with the undesirable,” the court observed, “and in which the appearance as well as the fact of the complete integrity is of paramount consideration, to exclude (Martin) from riding because of his record was an understandably warranted exercise of discretion.” Until the West Virginia high court ruled in November, a racetrack’s “discretion” in these matters was settled law.

It is ironic that the West Virginia Supreme Court cited a 1975 federal case, Hubel v. West Virginia Racing Commission, for its contention that a privately owned racetrack is nevertheless subservient to the state legislature that allows it to exist. Overlooked by the court was the following sentence contained in that same decision: “(Horse racing) has two substantial interests to be served. It has a humanitarian interest in protecting the purity of the sport…and (in) protecting the patrons from being defrauded.”

Racing’s “purity,” a quaint euphemism for the game’s integrity, is in serious jeopardy if a state’s racing commission no only abdicates its own primary duty to protect the public, but staunchly opposes—before a state’s highest court – a racetrack’s right it has held since at least 1896 (Grannan v. Westchester Racing Association) to be the sport’s last line of defense to prevent serious violations of racing’s rules.

Champion of the Disabled

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Louise Underwood: An Appreciation

In February 1977, I had been a lawyer less than six months when an urgent telephone call came into my office.

“Bobby, this is Louise.” “Louise” was Louise Underwood, the long-time book keeper from my family’s furniture store, Heleringer’s.

“The state is closing Hazelwood,” she said, “and moving our children out to nursing homes. And they’re doing it right now.”

“Louise,” I replied, “What and where is Hazelwood?”

I soon learned that Hazelwood was the old South Louisville sanitarium the state had converted in the 1970s to in ICF/MR (intermediate care facility for the mentally retarded) for nearly 250 severe/profoundly retarded adults. Louise had a brother-in-law, Ronnie Underwood, who lived there.

Unthinkable, but true, state officials had given no advance notice to the parents/families about Hazelwood’s closing or the ultimate destinations of their loved ones’ transfer. Galvanized into action by Louise, and after a law partner had kindly given me directions to the federal courthouse, I soon found myself standing before U.S. District Judge Thomas Ballantine, who, after a hearing, granted our motion for a temporary restraining order, stopping Hazelwood’s closure, and then ordered the immediate return of those residents who had already been sent to nursing homes. For the first time, and certainly not the last, Louise had saved the day by packing a federal courtroom, at a pivotal hearing, with anxious family members of Hazelwood’s residents.

With Hazelwood saved, at least temporarily, Louise endeavored to prevent a similar crisis in the future by getting a bill through the 1978 session of the General Assembly. The passage of Senate Bill 285 represents some of the most progressive legislation ever adopted by Kentucky’s legislature. It provided process rights to parents/guardians of ICF/MR residents, including a right to prior notice of any intended transfer, a right to attend interdisciplinary team meetings (often the prelude to a transfer), a right to legal counsel and a right to appeal adverse decisions to court.

A copy of this model act, signed by all 38 members of the state senate, has hung proudly in my office for 30 years. I was an aide at the time on the staff of the Republican Senate caucus and in amazement, had watched it all happen.

Again, it was Louise Underwood’s unabashed, tenacious drive that provided the expert testimony, and who rallied the troops that filled every committee room and the Senate and House galleries to get the bill passed.

Thus began a 30-year odyssey which ended sadly this week with her sudden passing – a virtual one-woman tsunami who took up the cudgels, not just for Hazelwood’s residents, but for every disabled citizen of our commonwealth. Not blessed with children of her own, Louise simply adopted every retarded adult citizen in Kentucky and became their champion, their voice.

And what a voice!

When governors, U.S. senators, cabinet secretaries and committee chairmen were told “Louise” was on the phone, they never had to ask, “Louise who?” If we legislators were the quarterbacks “executing the game plan,” Louise was the resourceful offensive coordinator up in the press box. She, and her allies, the families, ensured that every rally in Frankfort, and every good piece of legislation or budget allocation, had literally a cast of thousands on hand for the stretch drive. Louise’s boundless determination was often reflected in more than one harried legislator who would plead with me: “Heleringer, just tell me how to vote –and would you please ask Mrs. Underwood to stop calling?”

Fiercely proud of her Eastern Kentucky heritage (she will be buried at “home” in Hazard), she – like most of the leaders from that region – was never shy or apologetic about her passion or her, at times, bellicose demeanor when confronted with bureaucratic intransigence. In the Capitol, she had all the subtlety of Gen. George Patton sweeping through Germany’s Ruhr valley. And she achieved similar results.

Name any current program for the disabled community and (a) it was probably enacted in the last 30 years and (b) had her wise hands all over it. The state’s four ICF/MRs (Hazelwood, Outwood, Oakwood, and the Bingham Unit at Central State Hospital) were all defended, maintained and expanded.

Smaller, eight-bed ICF/MR units were created, funded and located all over the state, SCL (supports for community living) grants increased to alleviate the omnipresent waiting lists. The Supported Employment, Supported Living and Personal Care Attendant programs were initiated and enhanced on her watch – wonderful success stories all.

And now she’s gone.

But Louise Underwood’s immense legacy will endure long after her passing. She made a seismic difference in the thousands of lives across the commonwealth, in the buildings and programs she shepherded so inspiringly from dream to reality – all on behalf of her special people, who had no power, no influence, no respect, no consideration, indeed, no chance, until her full-throated, fireball-in-the-night voice demanded that public officials be accountable for all of our citizens, including our disabled.

And why? What drove this dynamic woman to such Herculean lengths and efforts?

I’ll always believe Louise Underwood was consumed by the kind of commitment that Robert Kennedy once described: “…to remember…that those who live with us are our brothers, that they share with us the same short moment of life; that they seek - as we do - nothing but the chance to live out their lives in purpose and happiness, winning what satisfaction and fulfillment they can.”

Well done, Louise. Well done, thy good and faithful servant.

Garfield’s Death Cuts Short His Promise

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Special To: The Courier-Journal

Even to many serious students of American history, the men who occupied the White House during the interregnum between the deified Abraham Lincoln and the iconic Theodore Roosevelt seem an undistinguished, almost anonymous group.

If fate had dealt him a better hand, James Garfield, the nation’s 20th President elected in 1880, may have been able to claim a place among the country’s most exalted chief executives. Or so believes Candice Millard in her compelling “Destiny of the Republic.”

Millard, a former editor and reporter for National Geographic, burst into the publishing universe in 2006 with her award-winning critically acclaimed “The River of Doubt,” a riveting account of Theodore Roosevelt’s near-fatal expedition to the end of Brazil’s uncharted Rio da Duvida (River of Doubt).

As taut as a Frederick Forsythe thriller, Millard seemingly weaves a three-way narrative closely following Garfield’s improbable path to the presidency: the deranged wanderings of one Charles J. Guiteau, who plotted and planned Garfield’s killing; and the desperate quest of renowned scientist and telephone inventor Alexander Graham Bell, whose “induction machine” (the world’s first attempt at taking a X-ray) held out the tantalizing hope that the elusive bullet lodged in the president’s body could be located.

James Abram Garfield, born dirt-poor in rural Ohio, was a brilliant but self-effacing man, and intellectual and academic scholar, fluent in languages, who – like many of his generation – honed his leadership skills in Civil War combat as a Union brigadier general. Garfield was an anomaly. In an age of unbounded, often ruthless political ambition, public service seemed to seek him. His unassailable integrity and vision was an antidote to the corrupt, machine politics of the country’s Reconstruction era.

Elected almost by acclimation to the capitol Ohio state Senate and then to the U.S. House of Representatives, Garfield – contrary to his express wishes -- became his party’s nominee for the president in 1880 after a hopelessly deadlocked Republican convention turned to him out of sheer exhaustion in the stifling Chicago heat. In a struggle that mirrors today’s internecine conflict in the Republican Party between its Establishment wing and the upstart Tea Party movement, “General” Garfield (as he was always addressed) was the darkest of horses tasked with uniting the GOP’s bitterly estranged “Stalwart” (pro-patronage) and “Half-Breed” (pro-civil service reform) factions. Garfield failed in that mission impossible, but he did win the consolation prize – the U.S. presidency.

Charles Guiteau is given almost equal billing in Millard’s book, which details the extent and depth of this unfortunate man’s acute mental illness. Finally concluding that his unhinged demand to be named U.S. secretary of state would never be granted, Guiteau’s fevered mind reasoned that, if only President Garfield were somehow “removed,” the “Stalwart” vice president, Chester Allen Arthur, would surely appoint him to the position. Guiteau thus set out to murder Garfield, a ridiculously easy task given that the era’s complete lack of presidential security – despite the still-vivid memory of Lincoln’s assassination just 16 years before.

On July 2, 1881, accompanied only by James G. Blaine, who held the job the assassin wanted, James Garfield was shot twice by Guiteau while the president was calmly standing among other passengers in the Washington train station. The first bullet produced a harmless flesh wound to the president’s right arm, but the second round burrowed deep into Garfield’s back.

Supported by her impressive medical research, Millard convincingly establishes that neither one of Garfield’s gunshot wounds should have been fatal. Rather, what eventually killed the president, after 2½ months of relentless suffering, was the primitive ineptitude of American standards of medical practice.

Scoffing at recently adopted European advances in “antisepsis” and other precautions to thwart the potentially mortal effects of “germs” and “bacteria,” the president’s vaunted medical team blindly did everything it could to hasten their patient’s death. The constant probing of Garfield’s more serious back would with unsterilized fingers with crude medical instruments caused the president’s body, as Millard chillingly describes “to be so riddled with infection that he was literally rotting to death.”

As Garfield’s physicians continued to rely on dangerously outdated medical and surgical techniques, Bell went the other way, racing to invent a device (his “induction machine”) that could locate the bullet deep in the president’s body. Through frantic trial and error, the intrepid inventor’s final contraption succeeded in finding the bullet but, given Garfield’s physical deterioration, nothing could be done to save his life.

After the president’s death, Millard expertly details Guiteau’s unsuccessful attempt to use an insanity defense – a first in American jurisprudence. An outraged nation would have none of it. By June 30, 1882, Guiteau was tried, convicted, and executed.

James Garfield served his country as its president less than seven months and, consequently, is largely forgotten. But, in a stirring epilogue, Millard asserts that this principled and courageous never the less left a remarkable legacy. His long, painful and very public death untied an America still emotionally divided by the Civil War. As a prominent minister eulogized the fallen president in the nation’s profound sorrow, “there was no North, no South, no East, no West – we are now one and indissoluble.”

Peter Fuller’s Unfinished Business

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Special To: The Courier-Journal

It is ironic that 89-year-old Peter Fuller died last week in the midst of a contentious debate within the horse racing industry about equine drug use.

Fuller holds the dubious distinction of being the only Kentucky Derby winning owner who suffered the indignity of having his horse disqualified for failing a post-race race drug screen. The current turmoil about race-day drug use arguably began three days after the running of the 1968 Kentucky Derby with the terse announcement by Churchill Downs that Fuller’s horse – Dancer’s Image – was disqualified because the iron-gray colt had tested positive for butazoliden, at the time a prohibitive, pain-killing “medication.”

“I must remind you,” a deeply wounded Fuller said, unleashing a furious legal challenge, “that Dancer’s Image ran the last quarter (of a mile) on May 4…with all his ability and heart to finish the course. Can I, as his owner and friend, do any less?” That Fuller had chosen to contest the disqualification was no surprise given what was at stake – and given his nature.

The ruggedly handsome Boston businessman was the son of Massachusetts Gov. Alvin Tufts Fuller, who had refused to commute the death sentences of convicted “anarchists” Nicola Sacco and Bartolomeo Vanzetti. Peter Fuller had captained Harvard’s wrestling team, served in the Marine Corps and was a prominent former armature boxer, winning 50 of 55 bouts, including the 1949 New England Golden Gloves and AAU heavy weight titles. Fuller’s pair of Louisville attorneys were also heavyweights – Arthur Grafton Edward “Ned” Bonnie. Grafton was perhaps Kentucky’s most skilled trial attorney while the younger Bonnie had developed a growing reputation for winning cases for sectioned horsemen with no-holds-barred attacks on the reliability of positive drug screens that had ensnared his clients. At Fuller’s direction, they would conduct a scorched-earth on the integrity of racing’s drug-testing system.

After a marathon, three-week public hearing, the Kentucky State Racing Commission upheld the stewards’ disqualification. (It was never determined, with any certainty, how the horse had ingested the illegal drug.) The dogged Fuller pressed on. The case would now be reviewed by Kentucky’s judicial branch. There, Fuller’s aggressive attorneys repeated their claim that the chemical tests conducted on Dancer’s Image’s urine sample were devoid of any scientific credibility. Franklin Circuit Court Henry Meigs II, after painstakingly reviewing the expert testimony taken by the racing commission – all 14 volumes and 2,860 pages of it – agreed and, finding no “substantial evidence,” reversed the disqualification of Dancer’s Image. Peter Fuller had won the Kentucky Derby again.

The racing world was shocked anew…and angry. Initial sympathy for Fuller turned to resentment. Industry critics now openly called Fuller a New England “outsider” and a “sore loser” seemingly bent on destroying a settled way things had always been done. Old wounds were reopened. Fuller was once again ”liberal” who had dared to “mix politics with racing” by donating, however quietly, one of Dancer’s Image’s winning purses to the murdered Dr. Martin Luther King’s widow. Thanks to Fuller’s perseverance, the final outcome of a Kentucky Derby would be decided by a civil judge (and not the racetrack’s “judges” – the stewards). Larger issues loomed. Would Peter Fuller’s knockout punches demolish racings glass jaw via the unmasking of an unreliable drug-testing regimen which meant there was only the illusion of a security system for the betting public?

The legal tsunami headed to Kentucky’s court of Appeals, then the commonwealth’s highest court. There, almost four years to the day after the running of the 1968 Derby, the court unanimously ruled that Judge Meigs was wrong – that there was enough evidence, shaky as it might have been, to find that Dancer’s Image won the Derby with a prohibited drug in his system the disqualification would stand.

Other than that one outsized asterisk in the otherwise unblemished history of the world’s greatest horse race, Peter Fuller’s legal challenge had a far more significance for the sport of horseracing itself. In a fascinating dichotomy, Fuller’s rigorous but unsuccessful attack on the reliability on racing’s drug-testing apparatus proved to be a wake-up call for updated improvements in the science of racing’s testing methodologies. Butazoliden itself became a legal medication, within limits, for race-day use by trainers. These changes once again being re-examined by the sport, are an enduring testament to the steely resolve of a Boston boxer who, in each and every round, got up off the canvas and continued to fight – not just for himself or his unlucky horse – but for the betterment of a sport that he truly loved.

A fighter to the end, Fuller became a self-appointed ombudsman and protector of the legacy of Dancer’s Image, calling writers all over the country to gently point out mistakes, real or perceived, in retrospective accounts of the ill-fated horse’s Derby disqualification. Peter Fuller was buried near the family’s ancestral summer home near Rye Beach, N.H., only about a furlong from the large, defiant billboard he had erected on the property, declaring it to be the proud home of “Dancer’s Image, Winner of the 1968 Kentucky Derby.”